Lieberman v. Kirby, Case No. 10 C 2570

BRAD LIEBERMAN, Petitioner, v. ALFREDA KIRBY,¹ Facility Director, Rushville Treatment and Detention Facility Illinois Department of Human Services, Respondent.

Case No. 10 C 2570

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

Dated: December 8, 2011

MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE,² District Court Judge:

Petitioner Brad Lieberman, a convicted sex offender, is civilly committed to the custody of Respondent Alfreda Kirby, Director of the Rushville Treatment and Detention Facility of the Illinois Department of Human Services. In this action, Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254 on the basis that his confinement violates his constitutional rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and the Ex Post Facto Clause of the United States Constitution. (R. 1, Pet. for Writ of Habeas Corpus ("Pet.") at 9-19.) For the reasons that follow, the Court denies Petitioner's application for a writ of habeas corpus.

BACKGROUND

A federal habeas court sitting in review of a state court judgment pursuant to 28 U.S.C. § 2254 will "presume state factual findings to be correct, unless the petitioner rebuts the presumption by clear and convincing evidence." Morgan v. Hardy, — F.3d —, 2011 WL 5319665, at *4 (7th Cir. Nov. 7, 2011) (citing 28 U.S.C. § 2254(e)(1)); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); Wiggins v. Smith, 539 U.S. 510, 528, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003); Barrow v. Uchtman, 398 F.3d 597, 603 (7th Cir. 2005)). "This presumption of correctness also applies to factual findings made by a state court of review based on the trial record." Morgan, 2011 WL 5319665, at *4 (citing, inter alia, Sumner v. Mata, 449 U.S. 539, 546-47, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981)). With these principles in mind, the Court turns to the relevant factual and procedural background, as found by the last state court to consider the merits of Petitioner's claims, the Illinois Court of Appeals. See In re Detention of Lieberman, 379 Ill. App. 3d 585, 586, 884 N.E.2d 160, 318 Ill. Dec. 605 (Ill. App. Ct. 2007).

In 1980, Petitioner was convicted in the Circuit Court of Cook County of six counts of rape and one count of attempted rape, and in the Circuit Court of Lake County of one count of rape and one count of attempted rape. Id. Petitioner was sentenced to multiple concurrent terms of imprisonment. After application of certain sentencing credits and adjustments, the State of Illinois (the "State") set a release date of January 9, 2000. Id.

Three days before Petitioner's scheduled release, the State filed a civil commitment petition pursuant to the Sexually Violent Persons Commitment Act ("SVPCA" or "Act"), 725ILCS 207/1 et seq.³ In its petition, the State alleged that Petitioner "had been convicted of a number of sexually violent offenses and was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence." In re Detention of Lieberman, 379 Ill. App. 3d at 586. On February 10, 2005, following a hearing, the state trial court found that there was probable cause to conduct further proceedings on the State's petition and ordered that the Department of Human Services ("DHS") detain Petitioner pending a civil commitment trial. Id.

At trial, the State presented the testimony of two expert witnesses: Dr. Jacqueline Buck, a clinical psychologist and special evaluator for the state department of corrections ("DOC") and Dr. Barry Leavitt, a clinical psychologist who specializes in sexually violent persons ("SVP") evaluations. In addition to other witnesses, Petitioner presented the testimony of three experts: Dr. Fred Berlin, a psychologist and medical doctor who specializes in sexual disorders; Dr. Diane Lytton, a psychologist experienced in treating sex offenders; and Dr. Michael Fogel, a licensed clinical psychologist and director of the Illinois Sex Offender Evaluation Unit.

The State's first witness at trial was Dr. Jacqueline Buck. As the state appellate court found:

Dr. Buck testified that she conducted one two-hour interview with [Petitioner] in October 1999 and reviewed his master file as well as numerous other documents. Her review included psychological and psychiatric evaluations of [Petitioner], police reports, and other court documents provided by the DOC detailing the events that led to [Petitioner's] various convictions. Based upon her review and evaluation, Dr. Buck believed that [Petitioner] was at a high risk to sexually reoffend if he was released into the community without treatment and, in October 1999, she prepared a report to that effect. Dr. Buck updated her opinion every year thereafter and, although she did not conduct any additional interviews of [Petitioner] because he refused to speak with her, Dr. Buck did not believe that an additional interview was warranted because [Petitioner] refused to participate in sexual offender treatment. . . . [Dr. Buck] believed that [Petitioner] continued to be at a high risk to sexually reoffend.

Dr. Buck testified that, in forming her opinions, she relied upon [Petitioner's] criminal history and the facts from cases in which he was convicted of rape and cases in which he was arrested and charged with a sexually related offense. . . . In arriving at her opinions, Dr. Buck also considered evidence of [Petitioner's] behavior while he was incarcerated in the DOC and in the custody of the DHS. . . . [Petitioner] received disciplinary reports for his conduct[, including drug offenses]. [Petitioner] had his visiting privileges revoked after demonstrating inappropriate behavior with a female in the visitor's room . . . .While in the custody of the DHS, [Petitioner] exhibited "angry, hostile, aggressive behaviors" . . . and insisted that he was being illegally detained. Dr. Buck also reviewed correspondence that [Petitioner] wrote to eight women over a period of approximately 10 months while he was incarcerated. On one occasion, . . . . [Petitioner] wrote to a woman whose picture he had seen in the newspaper, stating "how beautiful" she was, "how sweet and how hot," and "how lucky he would be to have a friend like her." . . . .

Based upon all of these considerations, Dr. Buck diagnosed [Petitioner] with paraphilia not otherwise specified, sexually attracted to nonconsenting persons (paraphilia nos). Dr. Buck described the group of paraphilia disorders, which are contained in the Diagnostic and Statistical Manual of Mental Disorders (DSM), as essentially "sexually deviant behaviors," and testified that in this case, "we have what the law calls rape behavior, sexual assaults with nonconsenting women." Dr. Buck testified that the first criterion for paraphilia is that there be "intense recurring sexually arousing urges, fantasies or thoughts or behaviors which occur over at least a 6 month period of time," and that [Petitioner] met this criterion based on his multiple rapes committed over a 10-month period. The second criterion for paraphilia nos is that these behaviors cause distress or impair [Petitioner's] ability to function socially in the workplace or society. [Petitioner's] detention in the DOC and DHS met this criterion, and Dr. Buck testified that [Petitioner] is "not able to be in society and function the way otherfolks do." . . . .

. . . . Dr. Buck further explained that paraphilia nos is a "very deep-seeded problem" that requires intensive treatment and does not heal itself or go away while someone who suffers from it is in prison. Moreover, although the 15 mental health evaluations [Petitioner] underwent while incarcerated did not diagnose paraphilia, Dr. Buck was the first examiner to do a sex-offender-specific evaluation.

Dr. Buck also diagnosed [Petitioner] with cannabis abuse and antisocial and narcissistic personality disorders. Dr. Buck described antisocial personality disorder as "the disregard for and violation of the rights of others," and narcissistic personality disorder as someone who is "very grandiose" in thought or behavior, who requires admiration, and exhibits a lack of empathy.

Dr. Buck also conducted a risk assessment using four actuarial tools to determine [Petitioner's] risk of committing future acts of sexual violence. Specifically, Dr. Buck employed: (1) the Minnesota Sex Offender Screening Tool Revised (MnSOST-R); (2) the Static-99; (3) the Violence Risk Appraisal Guide (V-RAG); and (4) the Sex Offender Risk Appraisal Guide (SORAG). [Petitioner] scored "very high" under the MnSOST-R, "extremely high" under the Static-99, "high" under the V-RAG, and "extremely high" under the SORAG.

Dr. Buck stated that she looked for mitigating factors to consider in reaching her opinions. . . . . Dr. Buck testified that [Petitioner] has refused to participate in any [sex offender programs offered by DHS] and was therefore unable to find any mitigating factors. Dr. Buck also considered [Petitioner's] age and testified that, because he scored as a psychopath, [Petitioner] did not exhibit the usual pattern of decreased crime corresponding to increased age.

Dr. Buck concluded that in her opinion, within a reasonable degree of psychological certainty, [Petitioner] suffers from mental disorders that are both congenital and acquired, affect his emotional and volitional capacity, and predispose him to commit future acts of sexual violence. Based upon her clinical evaluation, review of [Petitioner's] files, [Petitioner's] lack of sex offender treatment, and the actuarial instruments she employed, Dr. Buck opined that it is substantially probable that [Petitioner] will continue to commit acts of sexual violence if released into the community.

On cross-examination, Dr. Buck testified that the Association for Treatment of Sexual Abusers (ATSA) recommends the use of multiple sources of information when making evaluations such as

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